Martin v. Martin

• Decision Date: 24 September 1901
• Citation: 112 Wis. 314,87 N.W. 232
• Parties: MARTIN v. MARTIN.
• Court: Wisconsin Supreme Court

112 Wis. 314

87 N.W. 232

MARTIN

v.MARTIN.

Supreme Court of Wisconsin.

Sept. 24, 1901.

Appeal from circuit court, Sauk county; Robert G. Siebecker, Judge.

Suit by Laura Pearl Martin against Charles E. Martin for a divorce. From a judgment in favor of plaintiff, defendant appeals. Modified.Hurley, Ryan & Jones, for appellant.

Herman Grotophont and E. A. Evans, for respondent.

CASSODAY, C. J.

This action for a divorce was commenced July 3, 1900, by the personal service of the summons and complaint upon the defendant at Allentown, Carter county, in the state of Tennessee. The causes of action alleged in the complaint are habitual drunkenness and cruel and inhuman treatment. The defendant appeared in the action by his counsel, Ryan, Hurley & Jones, and answered by way of admissions, denials, and counter allegations, duly verified by the defendant personally August 11, 1900. At the close of the trial of the issues thus formed, the court found as matters of fact, in effect, that the parties were married March 9, 1887; that they had two children,--Portia Pearl, 12 years old, and Kenneth B., 10 years old; that during such marriage the plaintiff had been a true, dutiful, and good wife to the defendant, and performed all her duties as such; that the defendant had been an habitual drunkard for two years then last past and immediately preceding the commencement of the action, and during that time had the delirium tremens by reason of the excessive use of intoxicating drinks; that during the two years immediately preceding the commencement of the action he had been cruel and inhuman to the plaintiff by the conduct therein stated in detail: that by reason thereof the plaintiff became sick, and was compelled to leave the defendant a number of times, and seek refuge with her parents to regain her health and strength, and in consequence thereof the plaintiff had lost all love, affection, respect, regard, and esteem for the defendant; that, if the plaintiff should be compelled to so live with the defendant, she might suffer mental and physical collapse, or become insane; that, in consequence of his habits, he had been taken to various institutions to be cured, and among others to one in Tennessee, where he then was under the direct care of his sister, Carrie Martin; that the defendant was not a proper person to have the charge, care, custody, or control of said two children, and that the plaintiff was a fit and proper person to have the care and custody of said children and the supervision of their education; that the defendant was the owner of the several pieces of land therein specifically described, and that the same were, in the aggregate, worth $3,500; that the plaintiff had no property or income, excepting 57 acres of land near Devils Lake, upon which was situated a stone-crushing plant, owned by some Chicago concern, and that said concern had a lease thereof for the purpose of taking stone and having the same crushed for paving purposes; that said lease was and is for the term of 99 years, at the rental of $1,500 a year; that there is no certainty as to how long payment of such rental may continue; that, if the payment of such rental should cease, the property would be of little value, and the plaintiff would have no income; and that, in addition, the plaintiff was in possession and the owner of some household goods. As conclusions of law the court found, in effect, that the plaintiff was entitled to a divorce from the bonds of matrimony, as prayed for in her complaint; that she was entitled to an allowance and alimony out of the defendant's estate of $1,000, to be paid upon the entry of judgment herein; and that such payment be charged as a lien upon the real estate owned by the defendant, and therein specifically described, and so found to be of the value of $3,500; and that upon the neglect or refusal to pay such allowance as suit money the plaintiff might apply to the court to enforce the same by execution; and that, in addition, the plaintiff be entitled to recover from the defendant $50 as suit money, besides her taxable costs and disbursements in this action; that the plaintiff be allowed the care and custody of the two children named, subject to change of such custody upon proper proof shown; that the plaintiff, in case the said income of $1,500 annually, as rental, should fail her, might have the right to apply to the court at any time after the entry of judgment for an allowance to be paid for the care and education of said children, as the court might find proper upon evidence shown; and ordered judgment thereon accordingly. Thereupon, and on November 12, 1900, such judgment was so entered. From that judgment the defendant appealed to this court May 18, 1901.

Counsel for the defendant contends that the evidence is insufficient to sustain either the findings in respect to the defendant being an habitual drunkard or the findings in respect to his cruel and inhuman treatment of the plaintiff. In our judgment, neither of those questions is before us for review on this appeal. The statute declares that: “The time within which an appeal may be taken from so much of a judgment of divorce as dissolves the marriage bond, or so much of a judgment as annuls a marriage, is limited to six months from the date of the entry of such judgment, except in cases where the defendant does not appear, and was not served with the summons, and did not actually receive a copy of the summons or complaint by mail or otherwise, before judgment.” Section 3041, Rev. St. 1898. Here, as stated, the defendant was served with the summons, and actually received a copy of the summons and complaint, and appeared by attorneys, and put in an answer, which he personally verified August 11, 1900, and the appeal was not taken until more than six months after the entry of the judgment. The contention is that, as the statute quoted did not take away the right to appeal from those portions of the judgment in respect to the custody of the children and the allowance of alimony, this court, as a court of equity, might assume jurisdiction of the whole case, and review the portion of the judgment granting the divorce. To so hold would be to disregard the statute. The rule of law suggested by counsel is generally applied where a remedy at law is sought to be enforced in equity, as in Peck v. School Dist., 21 Wis. 516;Pierstoff v. Jorges, 86 Wis. 137, 56 N. W. 735, 39 Am. St. Rep. 881;State v. Green Lake County Circuit Court, 98 Wis. 150, 152, 73 N. W. 788;Hoff v. Olson, 101 Wis. 118, 76 N. W. 1121, 70 Am. St. Rep. 903;Ellis v. Land Co., 102 Wis. 409, 78 N. W. 583. In such cases there is no want of jurisdiction, but simply a misapprehension of a rule of practice. We are not aware that the rule suggested has ever been successfully invoked to give jurisdiction over a...